Discrimination: a Colorless, Odorless, and Tasteless Workplace Hazard

• Publication year: 2000
• Pages: 29
• Citation: Vol. 29 No. 10 Pg. 29

29 Colo.Law. 29 Colorado Lawyer 2000.

2000, October, Pg. 29. Discrimination: A Colorless, Odorless, and Tasteless Workplace Hazard

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29

Vol. 29, No. 10, Pg. 29

The Colorado Lawyer
October 2000
Vol. 29, No. 10 [Page 29]

Hot Topics In Employment Law

Discrimination: A Colorless, Odorless, and Tasteless Workplace Hazard
by Jim Abrams

Employment discrimination affects industry in ways comparable to other workplace hazards. Like many industrial toxins, it generally cannot be seen—it has no odor, cannot be easily detected, and cannot be tasted—but when it is present, both employer and employee feel its unmistakable effects. Two of the most pervasive employee protection statutes, the Occupational Safety and Health Act ("OSHA") and Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), which is administered by the Equal Employment Opportunity Commission ("EEOC"), represent sixty-six years of combined regulatory experience.1

Based on statistics reported by these agencies, it is doubtful that either workplace discrimination or workplace hazards will be eliminated any time soon. Additionally, an aging workforce protected by the Family and Medical Leave Act ("FMLA")2 and Americans with Disabilities Act ("ADA")3 ensures that health-related issues will be an increasingly important concern for general industry. This trend is likely to cause more regulatory interaction between OSHA and the EEOC

The enforcement schemes of OSHA and Title VII differ markedly, but their statutory objectives exhibit more similarities than differences. Both laws seek to control workplace exposures that are harmful to employees Safety-related discrimination charges filed with the EEOC and subsequent litigation evidence the dual responsibilities of corporate personnel charged with the enforcement of safety and health regulations under OSHA. Assuring that protected classes receive nondiscriminatory treatment in the regulation of workplace hazards is of central importance to both laws

Corporate personnel charged with safety and health responsibilities are generally focused on protecting personnel and property from exposure to mechanical, electrical, chemical, biological, and other hazards. However, they also must manage the known risks associated with discrimination. Discrimination can lead to disorders considered compensable through either a welfare plan or, in a number of states, workers’ compensation. Colorado restricts a number of claims resulting from alleged workplace mistreatment.4

As industrial injuries, the so-called "mental-mental" illness (mental stress leading to mental pathology) or "mental-physical" illness (mental stress leading to physical symptoms) caused by discriminatory practices may lead to workplace absenteeism, benefit claims, or lost productivity, just as do other industrial injuries and illnesses. Employees experiencing discriminatory treatment also may be prone to a higher incidence of injury or illness.5 Allegations of workplace discrimination are common. In 1999, approximately 77,000 charges were filed with the EEOC.6

This article provides examples of discrimination involving the health and safety interests of employees where age, disability, race, religion, national origin, or sex has played a role. Practitioners should be aware of these issues because the pervasiveness of OSHA’s regulatory scheme and conflicting demands placed on employers increase the opportunity for allegations of discrimination, which can result in an increased cost of doing business.

Jim Abrams formerly served on OSHA’s enforcement staff as a trial attorney with the Solicitor of Labor, and as counsel to Rockwell International and Texaco, Inc. He received his doctorate from the University of Oklahoma Medical Center and his law degree from the University of Oklahoma. He now practices in Denver.

Health- and Safety-Related Discrimination

The definition of an unlawful employment practice under Title VII states that it shall be unlawful for an employer

to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [sic] compensation, terms...